Insights into the world of divorce and family law matters

May 30, 2008

Subpoena of Internet Service Provider Records in a Divorce Case:

In 2005, Jennifer London, a United States citizen who was domiciled
in St. Martin, began divorce and child custody proceedings against her
husband, Richard London, also a United States citizen, in St. Martin, a
French territory governed by French law. Jennifer sought a divorce from
Richard based on adultery, a ground for a fault-based divorce. To
establish the adultery, Jennifer introduced evidence in the divorce
proceeding to suggest that Richard had used five pseudonymous Yahoo!
email accounts to solicit sex on the Internet. Richard denied that the
email accounts belonged to him and claimed that Jennifer had fabricated
the evidence.

Thereafter, Jennifer filed an application in district court for an
order to conduct discovery on the five Yahoo! email accounts under 28
U.S.C. § 1782 for use in her foreign divorce case. The district court
granted the application and issued a subpoena to Yahoo! directing it to
produce: (1) documents identifying the names, addresses, and telephone
numbers provided by the users of the five email accounts; (2) documents
describing the dates on which the five email accounts were created; (3)
documents describing the Internet protocol address (IP) from which the
five email accounts were created; (4) documents identifying Internet
groups in which the account users participated; and (5) documents
reflecting group board postings made by the account users. Jennifer
served Yahoo! with the subpoena, and agreed to waive the right to
documents listed in item five. Richard and the four Does moved to quash
the subpoena, which the district court denied....

The proof sought, given the nature and character of the foreign
case, is critical to establish adultery, secure the divorce, and defend
against allegations of fabrication. Such evidence may be the only way
to identify the user of the email accounts used to solicit adulterous
sex. The request is not an attempt to avoid foreign evidence rules, and
is not unduly intrusive or burdensome because it seeks to gather only
identifying information for the accounts, such as the names and
addresses of the users, and not the content of any communication. Given
the need for the evidence, and the minimal invasion required, the [Intel Corp. v. Advanced Micro Devices] factors weigh in favor of granting the request.

Appellants’ contention that granting the [discovery] request
violates their First Amendment right to anonymous speech is also
without merit. Appellants cite no authority for the proposition that
the First Amendment bars release of identifying data for email accounts
used to solicit sex partners on the Internet. We have held that
exposure of some identifying data does not violate the First Amendment.
See People of State of Cal. v. F.C.C., 75 F.3d 1350, 1362 (9th
Cir. 1996) (holding that order identifying phone numbers through a
caller identification service did not violate the First Amendment right
to speak anonymously). Thus, because a legal privilege was not
implicated, the district court properly denied the motions to quash the
subpoena.